Delegation of Legislative Power In Texas
In Texas, legislative power is defined broadly. It includes the power to set public policy. See, e.g., Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 432 (Tex. 1963); Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, 713 (Tex. 1959).
In addition, it includes many functions that have administrative aspects, including the power to provide the details of the law, to promulgate rules and regulations to apply the law, and to ascertain conditions upon which existing laws may operate. See Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 466-67 (Tex. 1997);
See also Housing Auth. of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 87 (Tex. 1940) (providing categories of delegations to public entities, including delegations to make rules to implement statutes, to find facts and ascertain conditions upon which an existing law may operate, to fix rates, and to determine the question of necessity of taking land for public use).
Because this definition of delegation sweeps so broadly, it is not surprising that "the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree." Boll Weevil, 952 S.W.2d at 466 (quoting Mistretta v. United States, 488 U.S. 361, 415, 102 L. Ed. 2d 714, 109 S. Ct. 647 (1989) (Scalia, J., dissenting)).
Although the Constitution vests legislative power in the Legislature, courts have recognized that in a complex society like ours, delegation of legislative power is both necessary and proper in certain circumstances. See Boll Weevil, 952 S.W.2d at 466.
Thus, the Legislature may delegate legislative power to local governments, administrative agencies, and even private entities under certain conditions. See Proctor, 972 S.W.2d at 734-35.
The Legislature may delegate powers to agencies established to carry out legislative purposes as long as the Legislature establishes reasonable standards to guide the agency in exercising those powers. See Boll Weevil, 952 S.W.2d at 467; see also Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 740 (Tex. 1995) (upholding a delegation to the Commissioner of Education to adopt rules "necessary for the implementation of" Chapter 36 of the Education Code); Higginbotham, 143 S.W.2d at 81, 83, 86 (upholding a statute giving a housing authority the power to, among other things, condemn property and to select housing for tenants).